Licensed LPFM Information
Preface...
EASING THE PATH TO LPFM STATUS FOR PART 15 STATIONS AND OTHERS
by Don Schellhardt, Esquire, Waterbury, Connecticut
**** IF you are interested in signing the Petition discussed below,
please respond to this article ON OR BEFORE 8:00 P.M. EASTERN TIME on
Wednesday, MARCH 23.
**** IF you have already signed on to an earlier draft of this
Petition, and want to change your mind after reading the March 2
version of this Petition, please let me know.
**** My E-Mail address is djslaw@gmail.com. ****
Acting in conjunction with some Part 15 AM station operators, I have
drafted a Petition For Rulemaking to the FCC. The Petition, which I
hope to submit to the FCC during the second half of March, would make it easier
for Part 15 AM station operators, Part 15 FM station operators and carrier
current station operators to compete for Low Power FM (LPFM) licenses.
Under certain circumstances, the proposal would place such stations at
total legal parity with "established" religious institutions and "established"
community activist groups in the competition for LPFM licenses.
The complete text of the proposed Petition (greatly revised from an
earlier version) is set forth below.
PLEASE NOTE that I co-founded THE AMHERST ALLIANCE, along with William C.
Walker of WILW Radio and The Low Power Radio Network, and I am currently Amherst's President (for about the
third time in its 12-year history). Nevertheless, I cannot guarantee
that THE AMHERST ALLIANCE will sign this Petition. Amherst Members are an
independent lot, and at least two thirds of them must vote for any
particular policy position before Amherst as an organization can endorse
it.
What I CAN tell you is this:
If I am not in a position to sign this Petition as President of THE
AMHERST ALLIANCE, I plan to sign it as Don Schellhardt, Individual.
**** This matter is TIME-SENSITIVE because the newly enacted Local
Community Radio Act (LCRA) -- which was approved by Congress in
December of 2010 and signed into law by President Obama on January 5, 2011
-- opens up new frequencies for LPFMs and REQUIRES the FCC to initiate
a "filing window" to consider new LPFM applications. A proposed rule on
how the Commission should proceed may not be issued by the FCC until 2012,
but it COULD be issued at ANY TIME.
**** So it's important to place this proposal before the Commission AS
SOON AS WE POSSIBLY CAN. Perhaps we can influence the Commission before
it even puts its proposed rule together. ****
****
IF you decide to become a signatory of this Petition, please send me the
information indicated below.
A. If you are a PART 15 AM STATION OPERATOR, A PART 15 FM STATION
OPERATOR or a CARRIER CURRENT STATION OPERATOR, E-Mail me the following
information (for inclusion in the Petition):
The snail mail address of your station (E-Mail address and/or phone number
optional)
The name(s) and title(s) of one or more individuals the FCC may contact at
your station
A short blurb about your station (2 paragraphs or less), including its
years
of operation AND its programming (with emphasis, where you can truthfully
provide it, on specific ways that your station has ADDED to programming
diversity on the airwaves AND/OR specific ways you have helped your
community)
B. If you are an "ALLY" OF ANY OR ALL OF THE ABOVE, E-Mail me the
following information (for inclusion in the Petition):
The snail mail address for yourself or an institution you represent
(E-Mail
address and/or phone number optional)
Your title (if applicable)
****
Petition...
The undersigned Petitioners are various supporters of opening the radio
airwaves to a wider range of voices. These supporters of radio reform
include Part 15 station operators, who are legally operating unlicensed
stations at a fraction of a watt, and [INSERT OTHER REFERENCES AS
APPROPRIATE].
Commission consideration of this matter is timely in light of the January 5,
2011 enactment of the Local Community Radio Act (LCRA). The LCRA has
wisely repealed previous statutory restrictions on the adjacent channel
spacing of LPFM stations, thereby making available new frequencies for such
stations. As a result, the Commission will be opening a "filing window"
for applicants to pursue new LPFM licenses.
When the Commission considers Low Power FM applications, under current
rules, it requires all applicants to be non-profit organizations
*and*assigns a bonus point to those applicants who can document an
"established
community presence" as a non-profit. We believe the Commission’s reliance
on documenting at least a 2-year history of incorporation as a non-profit
organization, as the only way to prove an “established community presence”,
unduly restricts and distorts the pool of viable applicants for LPFM
applicants.
We wish to be very precise in expressing our concerns. We are not
objecting to the requirement that all LPFMs must be operated by non-profit
groups. Nor do we object to the bonus point for documenting an
“established community presence”. Rather, we object to the practice of
requiring that *only *2 years of existence *as a non-profit* is acceptable
proof of an “established community presence”. We object to the practice
of not crediting activities by *individual residents *of a local community
toward this bonus point -- unless those individual activities were
performed within the context of a formally incorporated non-profit
organization.
If the Commission, when it opens a filing window for new LPFM applications
-- pursuant to the Local Community Radio Act (LCRA) -- is unwilling to
revise the "establish community presence" bonus point for new LPFM
applicants, to indicate clearly that non-profits do not have to be
incorporated for 2 years to qualify, so long as most of the individuals
associated with that non-profit have been local residents for at least 2
years, then* *the Commission should establish a separate new bonus point for
"radio-related experience".
The new bonus point for “radio-related experience” should be made available
for those cases in which:
(A) Most of the individuals associated with leading the newer non-profit
can meet a 2-year local residency requirement AND:
(i) The proposed Station Manager has at least 2 years of radio-related
experience, including (but not limited to) operation of a Part 15 AM or Part
15 FM transmitting or carrier current station, operation of an Internet
radio station or service on the staff of a radio station;
(ii) In a community that falls fully or partly within, or is located
within 10 miles of, the LPFM applicant's proposed service area.
A recently incorporated non-profit should be able to compete at total legal
parity with an "established" non-profit organization *if* the applicant can
meet these proposed requirements.
KEY CLARIFICATIONS
(1.) For purposes of this Petition For Rulemaking, the signatories assume
that licensing of new LPFMs, like the past licensing of existing LPFMs, will
be based on some kind of "Points" system. At this stage, we are
addressing the system that we know.
We are not closed to the possibility that the Commission might choose to
adopt a different license allocation system. We note, however, that any
licensing system must meet the statutory requirement, in Section 5 (2) of
the LCRA, for awarding new LPFM licenses (as well as licenses for new
translators and new boosters) on the basis of "needs of the local
community".
This statute precludes, on its face, possible auctions for new LPFM
licenses, possible lotteries for new LPFM licenses and possible use of a
"First Come, First Served" method for allocating LPFM licenses. Any of
these methods would bypass the required consideration of "the needs of the
local community", permitting bidding, random selection or vintaging to
dictate the licensing decision. The language of Section 5 of the LCRA
limits the Commission's prerogatives to the use of some kind of "Points"
system, or possibly a return to "comparative Hearings", or possibly some
other mechanism in which the licensing decision turns on how well each
applicant can serve a specific community.
(2.) Under this proposal, Part 15 station operators, and others with
"radio-related experience", would have to form a non-profit, if they are not
a non-profit already, before they can legally file for an LPFM
license. However,
they would no longer be penalized for not having been a non-profit in the
past. They would be able to form a non-profit as late as the day before
the LPFM filing without having to face an artificially imposed reduction in
their ability to compete with other LPFM applicants.
(3.) For purposes of this Petition For Rulemaking, the signatories do
not raise the issue of whether new LPFMs should be able to air commercials.
Within the ranks of the Petitioners, there are varied opinions on this
matter.
Individual signatories may or may not choose to re-open the issue of
commercial-airing LPFMs in one or more future filings to the FCC. For
purposes of this particular filing, however, the signatories are assuming,
for the sake of argument, that all LPFMs will remain non-commercial.
In that case, Part 15 station operators and others with “radio-related
experience” would naturally have to agree to non-commercial service when and
if they are licensed to operate a new LPFM station. However, just as
they would not be penalized for not having been non-profits in the past, so
they would not be penalized if they have not been non-commercial in the
past.
(4.) If an operator of an existing radio station which airs commercials
is willing to limit the new non-profit organization to LPFM operation only,
keeping it legally separate from any existing operations, commercials would
continue to be permissible on the existing station until and unless the
proposed LPFM is licensed. When and if an LPFM license is granted, the
existing station would have to be closed down (*or* transferred to an
operator not linked to the new LPFM in any way) in order to avoid any
cross-ownership problems.
INCREASING DIVERSITY WITHIN THE COMMUNITY OF LPFM STATIONS
During the past decade, the Commission has nurtured LPFM stations well. In
particular, it has done an excellent job of keeping LPFM stations free from
acquisition by, or untoward influence by, large commercial entities.
In turn, the LPFM stations themselves have contributed substantially toward
making the radio airwaves of America more diverse than they were before.
At the same time, however, the LPFM stations themselves have not been as
diverse as they could have been. Today, more than half of the nation's
existing LPFM stations are primarily or exclusively religious in their
programming. Many of the stations in the remaining half have a clear
political agenda: they are what PROMETHEUS RADIO PROJECT calls "tools for
social justice".
While there is certainly room in the community of LPFM stations for
religious programming, and also for programming that pursues "social
justice", there should be room as well for stations which reflect other
aspects of American culture. The Petitioners speculate that highly
ideological viewpoints may be over-represented among existing LPFM stations
because so many of the LPFM licensees themselves are selected exclusively
from among "established" non-profit organizations.
Compared to American culture as a whole, the outlook of those who join and
lead "established" non-profit organizations may be disproportionately
influenced by religious and/or political motivations.
Also:
The values and styles of altruists who choose to serve their communities
through groups may be different than the values and styles of altruists who
prefer to serve their communities through actions as individuals.
Because of these possible differences, the Commission's favoritism toward
LPFM applicants from "established" non-profit organizations may be
pre-disposing the pool of LPFM applicants in directions that are ultimately
arbitrary, unreasonable and somewhat unrepresentative of the American
grassroots as a whole.
There is a bias in the Commission's current procedures against altruists who
prefer to serve their community through individual action rather than
through group action ... and toward applicants with a relatively high
level of ideology.
Adopting the proposed separate bonus point for "radio-related experience"
would offset, at least in part, the distorting effects of the current bias
toward "established" non-profits in the LPFM licensing process. Applicants
with meet the proposed requirements would be able to compete at a level of
total legal parity with established religious institutions and established
community activist groups.
As a result of this parity, the next group of LPFM licensees might be more
diverse, and more representative of the American people as a whole, than the
current group of LPFM licensees.
Also:
A greater percentage of the station personnel in the next group of LPFM
licensees may have actual radio-related experience.
IDENTIFICATION OF THE PETITIONERS
[Names and other information to be INSERTED]
CONCLUSION
For the reasons we have stated herein, the undersigned Petitioners urge the
Federal Communications Commission to adopt the proposed separate bonus
point, for “radio-related experience”, in the allocation of new LPFM
licenses.
Respectfully submitted ...
